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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

MARK A. HILL, 

 Petitioner, 

 

 v. Civil Action 2:11-cv-755 

 Judge Graham 

 Magistrate Judge King 

WARDEN, CHILLICOTHE CORRECTIONAL 

INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, formerly a state prisoner,1

 instituted this habeas 

corpus action under 28 U.S.C. § 2254, in which he asserted sixty (60) 

claims challenging his state court conviction for felonious assault. 

On February 20, 2013, the Court entered final judgment dismissing the 

action. Opinion and Order, ECF No. 30; Clerk’s Judgment, ECF No. 31. 

This matter is now before the Court on Petitioner’s February 9, 2016 

motion for relief from judgment, Petitioner’s Rule 60(b)(6) and 

60(d)(3) Motion for Relief from Judgment, ECF No. 39 (“Petitioner’s 

Motion”). Respondent opposes the motion. Respondent’s Opposition to 

Petitioner’s Motion for Relief from Judgment, ECF No. 40. For the 

reasons that follow, it is recommended that Petitioner’s Motion be 

denied. 

 

1 Petitioner represents that he was released from prison on February 20, 2016. 

Notice of Change of Address, ECF No. 41. 

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Background 

 This Court dismissed all sixty (60) claims asserted in the action 

as either procedurally defaulted or without merit. Opinion and Order, 

ECF No. 30. In particular, and as it relates to Petitioner’s Motion, 

the Court adopted the Report and Recommendation, which reasoned, inter 

alia, that claims 20, 21, 22, 24 were claims that should have been, 

but were not, raised on direct appeal, that claim 39 should have been, 

but was not, raised in proceedings under Ohio’s Appellate Rule 26(B), 

and that all these claims were therefore procedurally defaulted. Order 

and Report and Recommendation, ECF No. 20, PAGEID# 1545, 1548-49; 

Opinion and Order, ECF No. 30, PAGEID# 1658. 

 This Court declined to issue a certificate of appealability in 

connection with the dismissal of this action, Opinion and Order, ECF 

No. 30, as did the United States Court of Appeals for the Sixth 

Circuit. Hill v. Warden, Chillicothe Correctional Institution, Case 

No. 13-3481 (6th Cir. Feb. 3, 2014). In declining to issue a 

certificate of appealability, the Sixth Circuit concluded, inter alia, 

that jurists of reason would not debate this Court’s determination 

that Petitioner had procedurally defaulted these claims. See ECF No. 

36, PAGEID# 1681-82. The United States Supreme Court denied 

Petitioner’s petition for a writ of certiorari. Hill v. Norman 

Robinson, Warden, Case No. 14-7614 (U.S.Sup.Ct. Feb. 23, 2015). 

Petitioner’s Motion

Petitioner’s Motion addresses this Court’s conclusion that claims 

20, 21, 22, 24, and 39 were procedurally defaulted. See generally

Petitioner’s Motion. This is not the first time that Petitioner has 

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raised this issue. In fact, Petitioner vigorously challenged 

Respondent’s claim of procedural default in his traverse, see 

Petitioner’s Reply to Respondent’s Return of Writ, ECF No. 18, PAGEID# 

1468-72, in his objections to the Report and Recommendation, see 

Objection, ECF No. 28, PAGEID# 1605-14, and in Petitioner’s Fed. Civ. 

R. 52(b) Motion for Amended and Additional Findings with Separate 

Conclusions of Law, Doc. No. 32, PAGEID# 1663-64.In the motion 

presently before the Court, Petitioner argues that this Court’s 

resolution of these claims in 2013 should now be vacated because that 

resolution was the product of a fraud upon the Court committed by 

Respondent’s counsel. In particular, Petitioner continues to insist 

that these claims were fairly and properly presented to the state 

courts in his application filed pursuant to Ohio’s Appellate Rule 

26(B); he argues that Respondent’s counsel committed a fraud upon this 

Court by arguing that these claims had been procedurally defaulted and 

by failing to include Petitioner’s Rule 26(B) sworn statement in the 

Appendix to the Return of Writ, ECF No. 12. 

Petitioner’s Motion invokes Rule 60(b)(6) and Rule 60(d)(3) of 

the Federal Rules of Civil Procedure. When filed in a habeas corpus 

action, a motion for relief from judgment under Rule 60(b) may be 

entertained by a district court, without prior authorization by the 

Court of Appeals, see 28 U.S.C. § 2244(b), only when the motion 

attacks, not the substance of the District Court’s resolution of a 

claim, but some defect in the integrity of the federal habeas 

proceedings. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). 

 Rule 60(b)(6) permits relief from a final judgment “when the 

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movant shows ‘any . . . reason justifying relief from the operation of 

the judgment’ other than the more specific circumstances set out in 

Rule 60(b)(1)-(5).” Id. at 528-29 (2005)(quoting the former version of 

Rule 60(b)(6)). Subsection (3) of the Rule, which permits relief from a 

final judgment on account of “fraud (whether previously called 

intrinsic or extrinsic), misrepresentation, or misconduct by an 

opposing party,” is the more applicable provision of the Rule and, 

because it specifically addresses claimed fraud, it is Rule 60(b)(3), 

rather than Rule 60(b)(6), that governs the allegations asserted by 

Petitioner. However, motions under Rule 60(b)(3) for relief from 

judgment by reason of fraud must be “made . . . no more than a year 

after the entry of the judgment . . . .” Fed. R. Civ. P. 60(c)(1). 

This time limit is jurisdiction. Mitchell v. Rees, 261 Fed. Appx 825, 

830 (6th Cir. 2008). As noted supra, final judgment was entered in this 

action on February 20, 2013 – i.e., almost three (3) years prior to 

the time that Petitioner’s Motion was filed. Any claim for relief 

under Rule 60(b)(3) is therefore untimely and this Court is without 

jurisdiction to entertain that claim. 

 Even considering Petitioner’s Motion by reference to the 

provisions of Rule 60(b)(6), moreover, the Court concludes that the 

motion is untimely. Motions brought pursuant to Rule 60(b)(6) must be 

filed “within a reasonable time.” Fed. R. Civ. P. 60(c)(1). 

Respondent’s Return of Writ, which presented the procedural default 

arguments about which Petitioner complains and which failed to include 

Petitioner’s Rule 26(B) sworn statement upon which he relies, was 

filed on January 9, 2012 – almost four (4) years prior to Petitioner’s 

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Motion. See Return of Writ, ECF No. 12. Petitioner has therefore been 

on notice of these issues since that time. Under these circumstances, 

it cannot be said that Petitioner’s Motion was filed “within a 

reasonable time.” Fed. R. Civ. P. 60(c)(1). 

Petitioner’s Motion also invokes Rule 60(d)(3) of the Federal 

Rules of Civil Procedure, which provides as follows: 

Other Powers to Grant Relief. This rule does not limit a 

court’s power to: 

 *** 

 (3) set aside a judgment for fraud on the court. 

Rule 60(d) offers a “‘savings clause . . . that allows judgments to be 

attacked without regard to the passage of time[.]’” Marcelli v. 

Walker, 313 F.App’x 839, 842 (6th Cir. 2009)(quoting Computer Leasco, 

Inc. v. NTP, Inc., 194 Fed. Appx 328, 334 (6th Cir. 2006)). See also

Mitchell v. Rees, 651 F.3d 593, 597 (6th Cir. 2011). However, “relief 

under this section ‘must, if Rule 60(b) is to be interpreted as a 

coherent whole, be reserved for those cases of “injustice which, in 

certain instances, are deemed sufficiently gross to demand a 

departure” from rigid adherence to the doctrine of res judicata.’” 

Marcelli, 313 F.App’x at 842 (quoting United States v. Beggerly, 524 

U.S. 38, 46(1998), and Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238, 244 (1944)). 

 The United States Court of Appeals for the Sixth Circuit has 

described the requisite “fraud on the court” as “‘egregious conduct 

involving a corruption of the judicial process itself.’” Gen. 

Medicine, P.C. v. Horizon/CMS Health Care Corp., 475 F.App’x 65, 71 

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(6th Cir. 2012)(quoting 11 Charles Alan Wright et al., Federal Practice 

& Procedure § 2870). The rule addresses 

only that species of fraud which does, or attempts to, 

subvert the integrity of the court itself, or is a fraud 

perpetrated by officers of the court so that the judicial 

machinery cannot perform in the usual manner its impartial 

task of adjudging cases that are presented for 

adjudication, and relief should be denied in the absence of 

such conduct. 

Demjanjuk v. Petrovsky, 10 F.3d 338, 352-53 (6th Cir. 1993)(vacating 

extradition order in light of a Brady violation by government 

attorneys)(quoting 7 Moore’s Federal Practice and Procedure ¶ 60.33).

 A movant seeking to establish fraud sufficient to warrant relief 

under Rule 60(d) must present clear and convincing evidence of 

(1)[conduct] on the part of an officer of the court; that 

(2) is directed to the judicial machinery itself; (3) is 

intentionally false, willfully blind to the truth, or is in 

reckless disregard of the truth; (4)is a positive averment 

or a concealment when one is under a duty to disclose; and 

(5)deceives the court. 

Johnson v. Bell, 605 F.3d 333, 339 (6th Cir. 2010); Carter v. Anderson, 

585 F.3d 1007, 1011-12 (6th Cir. 2009). 

 This Court concludes that Petitioner has utterly failed to meet 

this standard. Petitioner’s arguments regarding claims 20, 21, 22, 24, 

and 39 have been thoroughly considered on a number of occasions by a 

number of courts. Nothing presented in Petitioner’s Motion persuades 

this Court that the final judgment entered in this action was entered 

in error. 

 It is therefore RECOMMENDED that Petitioner’s Rule 60(b)(6) and 

60(d)(3) Motion for Relief from Judgment, ECF No. 39, be DENIED.

 If any party seeks review by the District Judge of this Report 

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and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

The parties are specifically advised that the failure to object 

to the Report and Recommendation will result in a waiver of the right 

to de novo review by the District Judge and waiver of the right to 

appeal the judgment of the District Court. See, e.g., Pfahler v. 

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that 

“failure to object to the magistrate judge’s recommendations 

constituted a waiver of [the defendant’s] ability to appeal the 

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 

984 (6th Cir. 2005) (holding that defendant waived appeal of district 

court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely 

objections are filed, appellate review of issues not raised in those 

objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 

2007) (“[A] general objection to a magistrate judge’s report, which 

fails to specify the issues of contention, does not suffice to 

preserve an issue for appeal . . . .”) (citation omitted)). 

April 22, 2016 s/Norah McCann King 

 (Date) Norah McCann King 

 United States Magistrate Judge 

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